Appeal No. UKEAT/0451/06/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 February 2007

Before
HIS HONOUR JUDGE BURKE QC
(SITTING ALONE)

MR T A DEFOE	APPELLANT

H M PRISON SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR CHARLES MANNAN
(of Counsel)
Instructed by:
Net Employment Solicitors
Pett Lodge
Ashford Road
Charing Ashford
Kent
TN27 0DX	
For the Respondent	MR DAVID BARR
(of Counsel)
Instructed by:
The Treasury Solicitor (Employment Law Team)
1Kemble Street
London
WC2B 4TS	

SUMMARY
Practice and Procedure – Disclosure
The Appellant claims discrimination and victimisation against the Prison Service.  As to disclosure, the Employment Tribunal ordered that security intelligence reports be redacted to delete names of prisoners who gave information to the Service about the Appellant and of officers who handled that information.  The Tribunal, I, and both Counsel had copies of the documents unredacted.  

Held: that the Tribunal had correctly or permissibly exercised their discretion.  Disclosure of the names could permissibly be regarded as unnecessary for the proper pursuit of the claim and there was clear justification for the exclusion of the names.

HIS HONOUR JUDGE BURKE QC

The history

1.	Mr Defoe was, until very recently, a prison officer working at Pentonville Prison.  He is black.  He worked as a prison officer at that prison from 1991 until he resigned, on 2 June 2006.  He suffers from intermittent but recurrent depression.  

2.	On 9 May 2005, he presented a claim against the Prison Service to the Employment Tribunal that he had been the victim of race discrimination, disability discrimination and victimisation.  He set out an extended and detailed history of alleged incidents of discrimination, starting in 1991 and continuing until the first part of 2005.  Events prior to 2003 were described in the claim form as “Background”; those from 2003 onwards were described as “Current Issues”.  Prominent in the pleaded account of current issues are the following assertions:

	1.	Mr Defoe asserts that, in February 2003, he gave evidence in support of a colleague at an Employment Tribunal, which colleague alleged that a principal officer, Mr Nicholas, had discriminated against him.           
                 
	2.	Since that time, security reports had been gathered by the prison with a view to establishing or supporting an allegation that Mr Defoe was bringing drugs or other contraband into the prison; and he was subjected to more observation and searches than white colleagues; his colleagues and prisoners were asked questions about his activities.  This conduct persisted.  In November 2004, Mr Defoe says that he was, on return from leave, subjected to a full ‘rub-down’ search and searched by a dog.  He was then transferred to a different job.  Similar events are alleged to have occurred twice in December 2004.  

3.	On 6 February 2005, it is alleged that Mr Defoe was moved to a different posting which was disadvantageous.

4.	On 11 February, Mr Defoe’s house, where he lived with his parents, was raided by police in the early hours of the morning.  The police searched him and the house for drugs.

5.	He then presented a formal grievance, which was not properly handled.

6.	He was off work with stress and depression from that time onwards and, in April, was told that he would be on no pay.

3.	In his pleaded case - and I have not sought to put forward all of the allegations which are set out in the claim form - he did not seek to compare himself expressly with any named comparator except Mr Bailey, who is referred to at para 24 where, it is said, that on the same day (30 December 2004) on which he was exhaustively searched, Mr Bailey, who was a white officer, was allowed to pass through the prison with only a rub-down search, although the drugs search dog had given four positive indications in respect of him.  It is now known that three other officers had their homes raided on the same day as that on which Mr Defoe’s home was raided; and it is not unlikely, and the Prison Service recognise this, that Mr Defoe will wish to compare himself with the treatment of those three officers and, in particular, will want to look at the amount of investigation and reporting there was in respect of them as compared with him.

4.	While, in their original response, the Service did not admit that Mr Defoe was suffering from disability for the purposes of the Disability Discrimination Act, after a joint medical report the response has been amended to admit disability.  The disability discrimination claim appears to relate principally, if not wholly, to the reduction in pay and does not play any part in the issues which were before the Tribunal on the occasion which has led to the present appeal.

5.	The response denied all discrimination and victimisation.  It is admitted that Mr Defoe gave evidence to the Tribunal on behalf of a colleague in 2003; but it is denied that anything that occurred thereafter, or before it, was discrimination or victimisation.  It is denied that Mr Defoe was subjected to more, or more regular, searches than other members of the staff; but it is now accepted that Mr Defoe was of considerable interest to those responsible for security within the prison, for what are said to be good reasons.  That is admitted; and, although it is not formally in the response, I have been told that the response will in due course be amended to reflect what I have said.  It is admitted that Mr Defoe was, therefore, the subject of investigation in relation to the bringing of substances into the prison.  The police raid is admitted; but it is denied that it was connected with the Prison Service.  As to the treatment of Mr Defoe’s pay, the response asserts that what occurred was standard practice in the light of the history.  

6.	At, or as a result of, a case management hearing which took place in September 2005, the issues between the parties were narrowed.  I have already said that the matters set out in the claim form went back to 1991 and were multiple (not an expression I have coined, but it is an apt expression to use to describe in no particular way the collection of allegations which appear).  By, or as a result of that order, it was first recorded that it had been accepted on behalf of Mr Defoe that the matters raised at paragraphs 1-15 of the claim form, that is to say, the matters identified in that form as background, were indeed to be treated as background.  Four issues of victimisation or discrimination on the grounds of race were identified as to be decided:-  first, whether the Prison Service had authorised, facilitated, or requested the police raid to which I have referred, secondly, the handling of the Mr Defoe’s grievance, thirdly, the handling of his complaint and fourthly, the reduction in his pay.   

7.	A pre-hearing review was to consider whether three other matters which were said to amount to race discrimination or victimisation should proceed or whether they were out of time.  Those were:- a complaint of racist graffiti written on his locker in about 2002, the searching of Mr Defoe between February 2003 and December 2004 and Mr Defoe’s being moved to a different job, which incident I have already described, in February 2005.  

8.	I am told it has now been accepted that the Tribunal has jurisdiction to deal with and to decide the latter two of those three issues.  Whether the Tribunal has jurisdiction (because of the time limits) to deal with and decide the first of those three issues is still undecided, but the first of those issues plays no part in the matters now before me.

9.	In 2006, Mr Defoe’s solicitors sought disclosure of a set of documents called Security Information Reports relating to Mr Defoe between January 2003 and the date of the raid of his house in February 2005.  A Security Information Report is a document on which a prison officer records information given about - to put it broadly for the moment - matters going on within the prison, either by another prison officer or by a prisoner.  When the prison officer receiving the information has filled in the form by identifying the prisoner concerned (if one was concerned), categorising the subject matter of the information, setting out what the information was and giving his name, the form is passed on to somebody who collates or processes it.  It is then, as is apparent, seen by an intelligence officer and by, or on behalf of, the prison governor.

10.	  The Chairman ordered that there should be a hearing at which the issue of disclosure would be determined; that hearing took place on 26 May 2006.  The issue arose because the Prison Service were only willing to disclose the Security Information Reports and other similar documents in a way which is described as redacting them, i.e. by altering them in such a way as to delete not only matters which were irrelevant in relation to Mr Defoe (as to which no complaint is made) but also by deleting the identity of the person who provided the information and the identity of the prison officer who received the information in the course of the process.  The Chairman, who was allocated to deal with this matter, Mr Metcalf, was provided with a copy of the documents as redacted and as unredacted and, before the hearing, had a full opportunity to consider both; it is not suggested that he did not do so.

11.	At the hearing, Mr Metcalf heard argument from Mr Mannan, of Counsel, on behalf of Mr Defoe and Mr Barr, of Counsel, on behalf of the Prison Service.  He concluded that the Security Information Reports should only be disclosed to Mr Defoe in the redacted form which I have described.  It is from that decision, sent to the parties with written reasons on 15 June 2006, that Mr Defoe now appeals.  

12.	Since that hearing, Mr Defoe has resigned and has presented a second claim to the Tribunal alleging constructive dismissal.  That claim is not before me in any form; I have seen no documents in respect of it; I mention it only as a matter of history.

The Chairman’s decision
13.	At paragraphs 1-4 of his decision the Chairman set out the issue which he had to decide and identified, in broad terms, the effective claims which Mr Defoe was pursuing.  He recorded the procedure that had been adopted in relation to the issue thus far and that Mr Mannan also had a set of the unredacted documents in respect of which he had, of course, given an appropriate undertaking.  

14.	He then set out, at paragraph 5, the general principle which applied to the decision which he had to make.  He said: 

“5.	The general principles of course for disclosure of documents are relevance and whether they are necessary for a fair disposal of the case.”  

He went on to consider why the Prison Service said that, in this case, such disclosure should not be made in full but in the redacted form.  He recorded that it was said that the proposed redactions were necessary to preserve the anonymity of prison officers and prisoners who had given information and intelligence in relation to Mr Defoe for two reasons:-  first, the need to preserve the integrity of the intelligence system which, within the prison, it is necessary to maintain to combat the evil of drug dealing, both within and outside the prison, i.e. coming into the prison from outside and, secondly, that it was necessary to preserve the safety of members of staff and prisoners who had provided such information and intelligence.  

15.	The Chairman recorded that the Security Information Reports showed that there were 11 or 12 staff members and something like 32 prisoners who were involved in the passing of intelligence in relation to Mr Defoe.  Of the prisoners, about half were and about half were not registered informants; but nobody has suggested to me that whether they were or were not registered informants is of any materiality to the decision I have to reach, or was of any materiality to the decision which the Chairman had to reach.  

16.	At paragraph 6, the Chairman recorded that the Prison Service were, as they still are, prepared to give disclosure redacted in such a way that the relevant staff would be identified by a number and by ethnicity, in the sense that whether they were white or of some ethnic minority would be specified.  

17.	So far as the raid on Mr Defoe’s house was concerned, it was intended that disclosure would be given of the ethnic identity of the other prison officers raided and of the number of Security Information Reports obtained in their cases, so that Mr Defoe could make a comparison between the number of such Reports which he says led to a raid in his case and the number of such Reports which he might want to say had led to the raid in their cases.  He will also be told (or has been told, it matters not which for present purposes) the number of Security Information Reports obtained each year in respect of him going beyond or before 2003 so that he can see, by comparing the numbers in each year, whether there was a sudden increase in the number of Security Information Reports after his giving evidence at the Employment Tribunal in 2003.  The Chairman set that out at paragraph 7.

18.	In paragraph 8 the Chairman recorded the case for Mr Defoe, that the interests of justice required full disclosure and that the risks relied upon by the Prison Service had been exaggerated, were speculative, and were not based on evidence.  The Chairman also considered an alternative route which had been put in front of him, namely, that the hearings could be held in private so that only parties and witnesses would be present and that Mr Barr had submitted that that would not eliminate the reality of the risk with which the Prison Service were concerned.  

19.	At paragraph 9 he said that Mr Mannan had gone too far in saying that the risk was purely speculative and hugely exaggerated.  He identified, by way of illustration, one of the Security Information Reports in which a prisoner was recorded as saying that he felt at risk because somebody was out to get him for being a ‘grass’, or words to that effect.  There are, as I have been shown, other Security Information Reports which indicate concern about the giving of information and what may happen as a result.  

20.	The Chairman concluded at paragraph 10 as follows:

“There are, as correctly identified by the Respondent, two risks, one is to the integrity of the system and the other is to the safety both of staff informants and inmate informants.  The integrity of the system point is well founded in my judgment because even assuming, and I assume it for these purposes, Mr Defoe neither deliberately nor inadvertently let slip anything, the prison authorities cannot be entirely confident of that.  It could end up in the drying up of their information system, their intelligence system in which there is a public interest and the same applies to the personal security of people.  It is a related fear of course.  How do I know that my name won’t be bandied about in another employment tribunal?  One would imagine that the inmates would also clam up if they knew that that was a possibility.  It seems to me those concerns are well founded and cannot be properly characterized as speculation.”

He continued at paragraph 11 as follows:

“I have decided that the redactions proposed with the disclosure as I have set out earlier are put forward by the Respondent is sufficient for the just disposal of this case.  I should add in passing that one of the named comparators within the pleased case at paragraph 37, is a person who does not feature in any of the SIRS to which I have had reference and which all parties present in this room have read in full.”

Thus he determined the issue before him.

21.	Before turning to the law and the matters argued on this appeal, it is important to make one further point.  The issue before the Chairman, and the subject of this appeal, was not an issue of public interest immunity (PII).  No claim of such immunity has yet been made.  The Prisoner Service’s position is that unless, or until, a disclosure order is made which goes beyond the redactions which they seek to make, there will be no need for a PII claim.  The issue before the Tribunal was one which required a decision as to the resolution of the clash between the principles of full disclosure on the one hand and the need to preserve confidentiality and avoid breaches of security and the creation of danger on the other.  

The law
22.	Both Mr Mannan and Mr Barr accept that there is a tension between the principle that relevant documents should be disclosed by the parties in litigation where it is necessary to do so, on the one hand, and the importance of preserving confidentiality and privacy on the other.  Mr Mannan, in his helpful skeleton, has set out the way in which the courts have addressed that tension over the years.  

23.	I do not propose, for neither Mr Mannan nor Mr Barr have taken me through them, to spend much time on the authorities; but it is right to refer to one or two passages which they contain.  In Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No. 2) [1974] AC 405 it was held that, where any attempt is made to limit disclosure of relevant material, the starting point must be that documents should be disclosed unless a strong case to the contrary is made out.  At page 434, Lord Cross - with whose speech the other member of the House of Lords (or most of them) agreed - referring to disclosure in relation to material before a government body, said:

“…whoever wins it is desirable that the arbitrator should have all the relevant material before him.  On the other hand, there is much to be said against disclosure.  The case is not, indeed, as strong as the case against disclosing the name of an informer - for the result of doing that would be that the source of information would dry up whereas here the commissioners will continue to have their powers under section 24 (6).”

24.	In D v National Society for the Prevention of Cruelty to Children [1978] AC 171, an informant had told the NSPCC that a young child was being mistreated.  The NSPCC went to the home of the parents of the child.  It seems, or at least it was asserted, that the child was perfectly sound.  The mother claimed that she had suffered personal injury as a result of the NSPCC’s intervention.  In the course of her proceedings she sought disclosure of the identity of the informant.  The House of Lords allowed the Society’s appeal against the Court of Appeal’s reversal of the decision of Croom-Johnson J.  I do not need to go beyond the head note to any great extent for current purposes; it summarises the ratio of the decision in this way: 

“…that a similar immunity from disclosure of their identity in civil proceedings should be extended to those who gave information about neglect or ill-treatment of children to a local authority or the N.S.P.C.C. to that which the law allowed to police informers, viz., that the identity of the informer might not be disclosed, whether by discovery, interrogatories, or questions at trial…” 

25.	Lord  Edmund-Davies said, at page 246, that where a confidential relationship exists and disclosure would be in the breach of some ethical or social value involved in the public interest, the court has the discretion to uphold a refusal to disclose relevant evidence, provided it considers that, on balance:

 “…the public interest would nevertheless be better served by excluding such evidence.  If, on balance, the matter is left in doubt, disclosure should be ordered.”

It may be that he was talking there about what is now called public interest immunity; but the same principle applies to the issue which arises in the present case.  

26.	It has not been suggested to me that, where the documents which are the subject of consideration are material, it is for the person who seeks disclosure to prove that there is no reason to withhold disclosure, as opposed to the other way around.  

27.	In Science Research Council v Nassé [1979] ICR 921, there were two separate appeals to the House of Lords which were heard together, both emanating originally from the Employment Tribunal.  In the first, a married woman clerical officer, employed by the Science Research Council, was passed over for interview for promotion when two colleagues were selected.  She alleged sex discrimination and also that she had been so treated on the grounds of her active trade unionism.  She applied for disclosure of recent annual confidential reports not only on herself but also on the two colleagues selected for interview.  

28.	In the second case, a methods analyst of Asian origin employed by Leyland Cars (as they then were) applied for a transfer.  He and three others, who were white, were interviewed.  He was unsuccessful.  He claimed that he had been the victim of race discrimination and asked for disclosure of the records relating to the interviews of the other candidates.  The Court of Appeal allowed appeals by the employers against the disclosure orders made; and the House of Lords upheld the Court of Appeal’s decision.  The head note sets out the ratio in these words: 

“…while no principle of public interest immunity protected such confidential documents and they were not immune from discovery by reason of confidentiality alone, the tribunal, in the free exercise of its discretion to order discovery, should have regard to the fact that they were confidential and that discovery would be a breach of confidence, so that, accordingly, relevance alone, though a necessary ingredient, did not provide an automatic test for ordering discovery, the ultimate test being whether discovery was necessary for disposing fairly of the proceedings and, in order to decide whether it was necessary, the tribunal should inspect the documents, considering whether special reasons such as “covering up” or hearing in camera should be adopted and following procedures which would avoid delay and unnecessary applications.”   

It is worth pointing out that in the first of those two cases, no suggestion of any threat to security or to an individual arose although, to a limited extent, there was such a suggestion in the second.  

29.	Finally, I propose to refer very briefly to the case of Frankson and others v Home Office [2003] EWCA Civ 655.  In that case, the issue was whether disclosure should be ordered, or, if ordered, ordered only subject to conditions as to the extent and manner of disclosure, of interviews made by prison officers to the police in the course of investigation of criminal offences where there had been no criminal prosecution.  The Court of Appeal upheld the decision of the County Court judge that conditions on the extent and manner of disclosure were required.  

30.	At paragraph 14 of the judgment in that case, Baker LJ, with whom Wilson J agreed, referred to the speech of Lord Hoffmann in Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, where Lord Hoffmann had said at 211 B:

“14.	...there seems to me no reason why the law should not encourage their assistance [that is, the assistance of people giving information] by offering them the assurance that, subject to these overriding requirements, their privacy and confidentiality will be respected.”

And at paragraph 39, Baker LJ said that the judge had to conduct a “balancing exercise” in which he had to have clearly in mind the need to maintain the confidences of the prison officers to the interviewing police officers, as far as it was possible to do so.  He said that the weight to be attached to the confidence “will vary according to the particular circumstance with which the court is dealing.  In the present case the countervailing public interest… is of very great weight…”

The arguments before me
31.	There is no doubt, in my judgment, that the Chairman was, in reaching his decision from which this appeal is brought, exercising a discretion.  The Employment Appeal Tribunal can only allow an appeal against his exercise of that discretion if he made an error of law or if his decision was perverse.  This is a proposition which Mr Mannan did not deny.  In some respects, the arguments before me have been different from those put before the Chairman, the basis of which have referred to when going through his decision earlier in this judgment, and it is important that I consider any new submission, to see if it substantially affects the basis on which the Chairman reached his decision; but for the most part, Mr Mannan has repeated before me his general submission that, (1) Mr Defoe cannot properly prepare his case and give proper instructions without knowing the identity of the relevant prisoners and prison officers whose names appear in the Security Information Reports and (2) the Prison Service’s concerns for their intelligence system within the prison and for those who provide and process intelligence pursuant to that system, are speculative, exaggerated, and unsupported by evidence.  

32.	Mr Mannan did not, in his oral submissions to me, develop all of the arguments which he has laid out in his skeleton, and I am grateful to him for that sensible piece of advocacy.  I do not propose to identify as I go through the points whether they are to be found in the skeleton or in Mr Mannan’s oral argument.  

33.	The first point is that the Chairman did not start from the right point because he failed to apply the presumption in favour of full disclosure.  I do not read the Chairman’s decision in that way, and do not believe that it can be so read.  The Chairman was well aware that this was a special case, to which special principles applied.  He had set up an elaborate process, prior to the hearing, to ensure that he and Mr Mannan had seen and were able to consider and put forward representations upon the redacted and unredacted versions.  He set out, at paragraph 5, in the first sentence (which I have already set out in this judgment) the general principle in entirely correct terms, and then proceeded to explain in the following paragraphs, why, on the facts of this case and having regard to the information that the Prison Service were prepared to give, he concluded that it was right to decide the way he did.  Nothing suggests that he put any onus on Mr Defoe to demonstrate why redaction should not take place.  At paragraph 10, he found that there existed the two risks identified by the Prison Service, which I have described and that the Prison Service’s fears were well-founded.  I detect no error of principle such as that which Mr Mannan suggests. 

34.	The next point made is that what Mr Mannan describes in his skeleton as the ‘integrity of the confidential system’ was never a fact considered by the Courts in the earlier cases.  However, the Chairman found that the risks which the Prison Service had put forward were well-founded.  Those risks were of danger to the system of intelligence-gathering by which, within the Prison Service, steps are taken to address and combat the very well-known problems arising from the use of drugs within prisons and the smuggling into prison of drugs and other contraband.  The Chairman described the protection of that system as “the preservation of the integrity of the intelligence system”, not “the confidential system”, as per Mr Mannan’s skeleton.  In paragraph 5, and again in shorthand in paragraph 10, he used the expression “the integrity of the system”.

35.	While it is correct that the authorities do not involve consideration of that particular facet of the Prison Service (for if they did, it would be highly unlikely that this appeal would be taking place at all), the need to protect material from disclosure in order to preserve its confidentiality, might, in some of the cases to which I have referred, be thought of as being of a less persuasive nature than in the present case; and the cases show that the need to protect confidential sources may be recognised as important and powerful.  I do not say must be recognised; I say may be recognised; because whether they are and the extent to which they are is a matter of fact for the Tribunal or a Court of first instance in each individual case.  I have already referred to what Baker LJ said at paragraph 39 of Frankson and do not propose to repeat it.  At paragraph 28 he said:

“28.	…The strength of the confidentiality is dependent on the particular circumstances of the case.”

36.	Mr Mannan submitted, both orally and in his skeleton, that there was no real danger to the informants and, by inference, the processors of the information received from the informants.  He submitted that the Security Information Reports were unreliable and, in some cases, say that the information was unreliable; they are merely reports to a staff member; they can be fabricated or exaggerated.  In that situation, Mr Defoe should be given the chance to see what evidence has been provided against him in full.  However in my judgment the task of deciding whether there was the danger, or risk, on which the Prison Service relied, was that of the Chairman.  He decided in the manner which I have described.  Mr Mannan has not actually used in his submissions to me the word ‘perversity’; I do not criticise him for that, because advocates in the Employment Appeal Tribunal regularly seek to avoid using such an expression because of the difficulties which it creates; but it is perversity, in reality, which he needs to establish.  It is of course well-recognised, and laid down by the Court of Appeal in Yeboah v Crofton [2002] IRLR 634, (CA), that a case of perversity has to be overwhelmingly demonstrated.  

37.	I cannot see any basis on which I could conclude that the Chairman reached a perverse decision when he decided that the fears or risks which the Prison Service relied upon had been correctly identified, were well-founded and could not be properly characterised as speculation.  It is not for me to make any decision on this matter of fact, but it is difficult to divorce oneself – and the Chairman perhaps could not have been expected to divorce himself – from the common knowledge that the use of drugs is rife in prison, that drugs are brought into prisons by one means or another and that, where drugs are involved, the provision of information can be an extremely dangerous step to take.  

38.	Mr Mannan, in his skeleton and orally, has set out a series of factual points, all of which he put before the Chairman, as he accepts.  For instance, that the Security Information Reports are very old: but they are not old; they are between 2003 and 2005.  He says that most of the inmates are likely to have left the prison; but there is no detail of that any more than there is that most prison officers are also likely to have left the prison.  Mr Mannan’s skeleton twice says that Mr Defoe had had no contact with the prison since 2002 when he left on sick leave.  That is incorrect, because a very large number of the allegations on which Mr Defoe relies relate to the period between 2002 and 2005.  He was at the prison until the raid, after which, he never returned to work (the raid having been in February 2005).  I do not propose to go through all these points of detailed fact set out in the skeleton, which can be seen by anyone who wants to see them.  I am wholly convinced that there is nothing in them, individually or collectively, to establish perversity.

39.	Mr Mannan submitted to me that, for the Prison Service to say (and I use his words)  there may be “a risk of sorts”, is going too far, and that to claim protection in those circumstances, at any cost, is also going too far.  But the Prison Service’s case is not that there may be “a risk of sorts”.  They have identified two specific risks; and the Chairman has found that their concern about those risks is well-founded.  Nor can it be said that the Prison Service have claimed protection at any cost, that is, a kind of blanket insistence on redaction; for they have been prepared to take the steps to go some way to identify the prison officers, by ethnicity and number and otherwise as I have described.  The Chairman was entitled, in my judgment, to conclude that the risks to which I have referred existed; and having so concluded, the balancing exercise was one for him to carry out.  

40.	Mr Mannan has submitted, and started out with the submission, that all the identities to which I have referred needed to be disclosed in order to support Mr Defoe’s claim that the prison was racist; but this is not a case in which it is alleged that the prison was racist. Mr Defoe relies on specific allegations of race discrimination.   Those specific allegations were considered by the Chairman.   He addressed the right principle in relation to disclosure as to those issues, and came to the conclusion that he did.  

41.	I turn to new matters.  First, Mr Mannan submits that there is new material, in that the Prison Service have now decided that those Security Information Reports which name as an information-gatherer or processor a prison officer called Mr Doodney should be disclosed without the redaction of his name.  He says that that (and I have to say that these words were suggested to him by me, but he adopted them) is a “break in the dam” and that once the Prison Service have adopted that position in relation to Mr Doodney, their position in relation to everybody else identified by name in the relevant documents is destroyed.  

42.	Secondly, he put before the Chairman the general argument that everything had to be disclosed, but not, as he has put before me as a fallback position, the more limited argument that the redactions should not be allowed to be sustained where they are of the names of persons specifically identified by Mr Defoe in his claim form.  

43.	Mr Barr, on behalf of the Prison Service, informs me that the decision had been taken to abstain from redaction of Mr Doodney’s name for this reason – he is specifically named in paragraph 19 of the claim form as an officer about whom a prisoner had given information to Mr Defoe, that that officer had been asking inmates if Mr Defoe was bringing drugs and other contraband items such as mobile phones, into the prison and was also asking prisoners what they knew about Mr Defoe.  The Prison Service take the view that, in the light of that specific allegation against him, Mr Doodney should be enabled to clear his name and that it is fair and right that his name, where it appears on the Security Information Reports, should be disclosed for that reason only.  They say that is not a general reason which applies across the board.  There is no break or hole in the dam; no-one else falls into the same category as Mr Doodney.

44.	They have not sought to redact anything in relation to Mr Nicholas, who is the principal officer against whom Mr Defoe’s colleague made a claim in February 2003, in the course of which Mr Defoe gave evidence.  For obvious reasons, Mr Nicholas has to be able to say, ‘whatever I have done, I did not do it in some way because of the fact that Mr Defoe gave evidence against me.’

45.	Apart from those special cases, say the Prison Service, none of the other allegations in that part of the claim which is live, by way of falling within current issues, is on all fours with Mr Doodney’s case.  I have been taken through the allegations in the claim form; I do not propose to go through all of them in this judgment.  It should suffice to say that I am quite satisfied that what Mr Barr says is, on analysis, correct.  Had the Chairman known that the redaction was not made or going to be sustained in the case of Mr Doodney, I have no doubt that that would not in any way have affected the way in which he exercised his discretion.  

46.	As to Mr Mannan’s fallback position, many of the names identified in the claim form were identified only in relation to the background and are not the subject of direct allegations.  There are some others.  Again, we have gone through the claim form and through some of the Security Information Reports in some detail;  I am wholly satisfied that the Chairman, if he had been looking at the matter in the more limited way in which Mr Mannan now puts it (and I am not here addressing Mr Barr’s point that Mr Mannan cannot now put forward an argument which he did not put forward below) would not have reached any different conclusion.  It may well be that the argument should not be developed here when it was not developed below; but because I am quite satisfied that it would not have made any difference, that point need not be specifically addressed further. 

47.	 I have come to the conclusion that the Chairman was entitled to find, as he did, that disclosure of the redacted identities was not necessary to Mr Defoe’s proper pursuit of his claims, that the fears on which the Prison Service relied were well-founded and that the redactions were appropriate or, to put it another way, that the Prison Service should not be ordered to make disclosure without those redactions.  He considered all the documents; he directed himself properly as to the law.  He had the task of exercising a discretion in the light of the material arguments before him; he did so, in my judgment, in a permissible manner.  He reached a conclusion which was open to him and he made no error of law, nor did he reach a conclusion which was perverse.

48.	For those reasons, this appeal is dismissed.